The Navigational Servitude: The Role of a Categorical Exception Within a System of Ad-Hoc Review


By: Eileen Monahan

The Fifth Amendment to the United States Constitution provides, in part, that private property shall not “be taken for public use, without just compensation.”  Known as the Takings Clause, this provision limiting the government’s sovereign power of eminent domain may appear to be straightforward, but in practice is not.  Several categorical exceptions to this requirement have developed over time.  One such categorical exception is the navigational servitude, which allows the federal government to exercise its power to regulate and control the nation’s navigable waterways without paying compensation for the resulting economic loss.

This Note will argue that the availability of such a blanket exception is unjustifiable.  First, it creates perverse incentives for the government to disproportionately take littoral land and produces inequitable results for landowners.  Second, historically based in the federal government’s power over interstate commerce, the policy justifications for the navigational servitude are no longer compelling in our modern economy where waterways are not the vital highways of commerce they once were.  Therefore, the navigational servitude should not be an absolute defense to taking claims anymore.  Instead, such claims should be analyzed within the fact-specific framework that applies to takings that occur on land and in non-navigable waterways.  Such an analysis can limit the draconian nature of the current navigational servitude and encourage the federal government’s equitable use thereof.

 

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